Vessel Medical Inc et al v. Elliott et al
Filing
88
CONSENT ORDER documenting the parties' agreement as to the steps to be taken by Defendant Craig Elliott to comply with this Courts September 15, 2015, 78 Opinion and Order granting, in part, Plaintiff's Motion for Preliminary Injunction (the Order), as that Order pertains to Plaintiffs confidential information and trade secrets. Signed by Honorable Mary Geiger Lewis on 9/30/2015. (abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Vessel Medical, Inc., et al,
Plaintiffs,
Case No. 6:15-330-MGL
vs.
CONSENT ORDER
Craig Elliott, et al
Defendants.
This Consent Order is entered for the purpose of documenting the parties’ agreement as to
the steps to be taken by Defendant Craig Elliott to comply with this Court’s September 15, 2015,
Opinion and Order granting, in part, Plaintiff’s Motion for Preliminary Injunction (the “Order”),
as that Order pertains to Plaintiffs’ confidential information and trade secrets.
Pursuant to the Order, the parties have agreed as follows:
1.
Defendant Elliott has made a forensically sound and complete mirror image of
Defendant Elliott’s computer hard drive (the “Mirrored Hard Drive”), using a qualified IT
professional, Robert Smith of TechForce. Mr. Smith has delivered the Mirrored Hard Drive to
Defendant Elliott’s counsel, who shall retain possession of the Mirrored Hard Drive in a fireproof
file cabinet and shall not access same until further order of this Court.
2.
As described below, the parties intend to mediate this dispute as has been ordered
by the Court. However, if the parties do not resolve this action at mediation, they shall thereafter
timely identify a duly licensed and certified forensic examiner (the “Consultant”) who shall
conduct searches as agreed to amongst the parties and as ordered by the Court. Plaintiff’s counsel
shall deliver the Mirrored Hard Drive along with chain of custody documentation to the
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Consultant, who shall retain exclusive possession of the Mirrored Hard Drive until further order
of this Court.
3.
Defendant Elliott, with the assistance of his counsel and a qualified IT professional,
shall thereafter ensure that any and all data constituting Plaintiffs’ confidential information or trade
secrets, as described in the Order (the “Confidential Information” and “Trade Secrets”), is
permanently removed from his computer hard drive, with no copies of any such data being retained
by Plaintiff in any form, format or location. Plaintiff shall certify his compliance with this
provision within one week of the entry of this Order.
4.
Defendant Elliott’s compliance with paragraphs 1 and 2 of this Consent Order shall
be considered full compliance with paragraphs (A) and (F) of the Order as it relates to his
dispossession and preservation of electronic information potentially containing or reflecting
Confidential Information or Trade Secrets.
5.
Defendant Elliott will continue to preserve all other electronic evidence, including
any and all email correspondence, which Defendant Elliott certifies has been fully backed up and
stored via retention tools available via his email provider, to the extent said email correspondence
is not otherwise stored on the Mirrored Hard Drive.
6.
Defendant Elliott stipulates that he has no other computers, smart phones, external
storage devices on which he has stored or has access to any of Plaintiffs’ Confidential Information
or Trade Secrets, presently or at any time since June 1, 2014, nor has he sent any such Confidential
Information or Trade Secrets to any cloud based storage system or to any third party, including,
without limitation, Defendant Mako Medical Laboratories, LLC.
7.
Before incurring additional discovery costs and ESI search costs, the parties have
agreed to mediate this case as soon as possible (hopefully within 30 days) in the hopes that an
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amicable, universal settlement is achievable.
8.
If the case is resolved, the Mirrored Hard Drive will be destroyed by the Consultant
or returned to Plaintiffs.
9.
If this case is not resolved via this mediation, the parties will negotiate and submit
to this Court a standard protocol for the search of Mirrored Hard Drive. Each party will bear the
expense of its searches, although the prevailing party may seek to recover these costs at the
conclusion of litigation.
10.
Further, if the case is not resolved at mediation, Defendant Elliott shall have 48
hours to file a motion for reconsideration of the Order.
IT IS SO ORDERED.
s/ Mary Geiger Lewis
Mary Geiger Lewis
United States District Judge
Dated: September 30, 2015
Columbia, South Carolina
WE CONSENT:
NELSON MULLINS RILEY & SCARBOROUGH LLP
By: s/ William H. Foster
William H. Foster, Esq.
Federal Bar No. 6221
E-Mail: bill.foster@nelsonmullins.com
104 South Main Street / Ninth Floor
Post Office Box 10084 (29603-0084)
Greenville, SC 29601
Telephone: (864) 250-2300
Facsimile: (864) 250-2383
Attorneys for Plaintiffs
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LAW OFFICE OF W. ANDREW ARNOLD, P.C.
By: s/ W. Andrew Arnold
W. Andrew Arnold, Esq.
Federal Bar No. 5947
E-Mail: aarnold@aalawfirm.com
Jeremy R. Summerlin, Esq.
Federal Bar No. 11827
E-Mail: jsummerlin@aalawfirm.com
712 E. Washington Street
Greenville, South Carolina 29601
Telephone: (864) 242-4800
Facsimile: (864) 242-4885
Attorneys for Defendant Elliott
TURNER PADGET GRAHAM & LANEY P.A.
By: s/ Reginald W. Belcher
Reginald W. Belcher
Federal Bar No. 6940
rbelcher@turnerpadget.com
Jessica L. Gooding
Federal Bar No. 11754
jgooding@turnerpadget.com
Post Office Box 1473
Columbia, South Carolina 29202
Telephone: (803) 254-2200
---and--SHANAHAN LAW GROUP, PLLC
John E. Branch III (admitted pro hac vice)
jbranch@snahananlawgroup.com
Christopher S. Battles (admitted pro hac vice)
cbattles@shanahanlawgroup.com
128 E. Hargett Street, Third Floor
Raleigh, North Carolina 27601
Telephone: (919) 856-9494
Facsimile: (919) 856-9499
Attorneys for Defendant Mako
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